July 03, 2014
State Law Contraception Mandates and Post-Hobby Lobby Federalism
Susan is correct, of course, that several states (26 by statute and two by administrative ruling according to this from the NCSL; see also this summary from the Guttmacher Institute) require that employers include contraception in prescription drug benefit plans. While some include broad religious exemptions (eg, Texas), others provide no exemption at all (eg, Iowa) or, as in California and NY, an exemption limited in the same terms as the HHS mandate (which I wrote about a couple years ago here). There are ways around such state-law mandates, however, most notably in some circumstances through self-insurance, and part of the impetus for the HHS mandate under the ACA was to require coverage in all employer-provided plans (other than the diminishing grandfathered few or those entitled to the religious exemption) as well as those in the 22 states without a state-law mandate.
Because RFRA does not apply to the states under Boerne, challenges to state law mandates have to rely directly on the Free Exercise Clause of the First Amendment (with little chance of success, of course), state constitutional free exercise clauses, or state RFRAs. Such challenges--including the challenge (cert petition here) I was part of as an associate at Williams & Connolly ten years ago to the California mandate--have been unsuccessful. (One issue from that petititon that I think has never been fully explored is whether the carving up of what is a sufficiently "religious" institution to qualify for for an exemption poses Larson v. Valente Establishment Clause problems, but that has garnered about as much interest from courts as the argument on the other side that Caldor v. Thornton from the same era implies a broad rule that accommodations raise Establishment Clause problems.) Thus, the point made in this LA Times story that not much will change for many employees post-Hobby Lobby and the likely push in some of the remaining 22 states to enact contraceptive mandates.
Perhaps there are some important doctrinal Justice Kennedy-syle federalism-as-protecting-liberty reasons for this post-Hobby Lobby state of affairs (Howard Wasserman raises similar issues here), as well as an example of Rick Hills's "Westphalian" strategy of substituting conflicts over jurisdiction for conflicts over deeply contested moral questions. Justice Kennedy wrote the decision for the Court in Boerne holding that RFRA was not a congruent and proportional remedy for any state (or local government) religious free exercise violations of § 1 of the Fourteenth Amendment (a then much-criticized narrowing of Congress's § 5 power--times change). The federal government remains limited by RFRA in what it can impose on the nation by statute or regulation (see O Centro and Hobby Lobby). The states, however, can ratchet up or down levels of free exercise protection through interpretation of their state constitutional provisions, enacting state RFRAs, or crafting exemptions (or burdens, see Locke v. Davey), free from federal constitutional (see Smith, which Justice Kennedy joined) or statutory (see Boerne) demands.
July 02, 2014
Thoughts on the Law and Religion Roundtable
As Rick noted, last week was the 5th Annual Law and Religion Roundtable, hosted this year at Washington University in St. Louis. (I join the chorus of gratitude to John Inazu and his colleagues for their gracious hospitality.)
One of the worthy purposes of the gathering is to foster a community among law and religion scholars, including (especially) among those who disagree about fraught and divisive subjects (abortion, same-sex marriage, legislative prayer, RFRA, the role of the state, and the reasonableness of religious belief, to name a few offhand). Still, I do think--as Rick already indicated--that some fault lines are developing and coming into sharper focus among those working in the area, even if such gatherings still hold the promise of civil discourse and disagreement.
The meeting last week was amid the quiet before the storm of the decision in Hobby Lobby on Monday. As Paul Horwitz notes in his NY Times essay today, the consensus in favor of religious accommodations is collapsing. I don't think we should sidestep making the obvious point that this is on account of arguments about sex (Paul highlights the debate over same-sex marriage in particular). Consider the underlying issues in much of the prior history of religious exemptions and accommodations: military service (Seeger and Welsh), mandatory school attendance (Yoder), drug use (Smith and O Centro), and sabbath observance (Sherbert). With the possible exception of the first, none rose to the level of public debate that now surround abortion, the contraceptive mandate (even if there is little public debate about the morality of contraception as such), and same-sex marriage. It was easy to talk about religious freedom and pluralism when that meant Quaker exemptions from the draft or small religious communities using hallucinogenic substances. Now that the argument over religious exemptions has moved to much more contested issues, can a consensus that values pluralism hold? Does the Rawlsian liberal embrace of pluralism, freedom of conscience, and an overlapping consensus of reasonable views depend (philosophically or historically, as a contingent matter) on a range of acceptable views that those who, say, oppose abortion, the HHS mandate, or same-sex marriage are now outside?
Another pervasive argument in "law and religion" is what one makes of the "religion" part. The "religion is not special" view has been gathering force for several years, with arguments from Schwartzman, Leiter, and Eisgruber/Sager (among others). Another way to approach the religion is not special argument is to frame it as an internal/external distinction. For some of us, we think (I dare to say “reason”) about religion from an internal view, within a specific religious tradition and set of commitments (which does not entail, I hope, an inability to engage those from outside that tradition). And some are sympathetic to religious claims even if not adherents themselves, just as one can be sympathetic to claims for free speech by those with whom one disagrees. The alternative “external” view proceeds, by definition, outside of (unsympathetically toward) a tradition and regards religion as another commitment people happen to have (for the kind of people into that sort of thing), albeit one that is irrational, socially disruptive, and historically a source of bloodshed and oppression. As John Finnis puts it in this passage:
If religion is...just one among the deep passions and commitments that move people, it does not deserve constitutional mention on account of any special dignity or value, and if its mention in constitutions is defensible at all, the defense must be back-handed: religious people have been so beastly to each other that historical constitution-makers have not necessarily been unreasonable in treating the religious as specially vulnerable to discrimination. But the hypothesis – that religion is just one deep and passionate commitment amongst others – is, of course, lethal to religion. It is an absolutely external view, which treats religious propositions as if they were inherently incapable of conveying any understanding of or rational response to any feature of reality. They treat religion in the way that Ronald Dworkin regularly treats views of legislators or “majorities” with which he is unsympathetic, that is, not as propositions about rights, or common good, or as any other proposition or premise justifying a normative conclusion, but instead as mere expressions of distaste or disapproval, accompanied by an appeal to the power of those who hold these views – their power as a majority to give effect to their attitude, their passionate commitment. John Finnis, "Why Religious Liberty is a Special, Important and Limited Right" (2008).
Exploring “mere expressions of distaste or disapproval accompanied by an appeal to the power of those [such as justices on the Supreme Court] who hold these views” would be a jejune research agenda for any academic field to embrace. I hope future gatherings of law and religion scholars can continue to think anew about ways of contributing to the field (and shaping the legal culture and civil society) without avoiding difficult conversations about our differences.
June 20, 2014
Mathewes on Dworkin and Wiman
Anything by UVA's Charles Mathewes is presumptively worth reading, but Chuck's review at the American Interest combining his reflections on Ronald Dworkin's posthumous Religion Without God and Christian Wiman's My Bright Abyss (which I praised last summer here) is especially thoughtful on the place of religious discourse in contemporary public life. (Though I must resist Chuck's characterization of law and philosophy as "deeply unreflective academic fields.") A bit from the first section that frames his essay:
If any of these religion[s] try to “appear” in public (the metaphor itself is telling), they must politely cram themselves into the whalebone corset that is the etiquette of the modern Western public sphere. Religion in the contemporary West has become socially and politically denominationalized and existentially privatized. Many religions can accept such terms only at the cost of self-mutilation. Pretty obviously, this is a situation that doesn’t encourage coherent conversation about belief—more the opposite.
This is a special problem in a liberal society. If the genius of political liberalism is to recognize an inviolable wall around the privacy of the individual, the problem that liberalism faces is that that wall, once established, blocks passage in both directions. If we deem it abhorrent to violate another’s conscience, and so construct the public sphere in such a way as to forbid the public from invading the conscience, it is hard to see how so private a conscience can break out, to interact at all with public affairs. This risks turning the individual’s fortress into a prison; we have secured ourselves from violation only by forbidding ourselves real encounter. Liberalism’s admirable recognition of the unique value of each individual has had the effect of creating a society composed of gilded birds trapped in iron cages.
May 21, 2014
James Sandman's Commencement Address at Villanova Law
Do yourself a favor and take 20 minutes to watch Jim Sandman (President of the Legal Services Corporation and former managing partner of Arnold & Porter and General Counsel of the DC Public Schools) deliver the commencement address last Friday at Villanova Law (the introduction and address begin at the 17:00 mark here). It's an extraordinary presentation about personal character and the virtues of a good lawyer, including a moving tribute to the late Judge Max Rosenn of the US Court of Appeals for the Third Circuit.
April 28, 2014
Paul Sigmund, RIP
The noted Princeton political theorist Paul Sigmund died yesterday at the age of 85. Paul's interests were catholic and Catholic: books on Nicholas of Cusa, natural law, liberation theology, and Chilean politics, as well as edited volumes on Thomas Aquinas and John Locke. He was at Princeton for over 50 years, beginning in 1963 when there were few Catholic intellectual voices outside of Catholic universities. The main current of his work was exploring the relation of Catholic political thought and the natural law tradition to liberal democracy in a range of contemporary (Christian Democracy in Chile) and historical (conciliarism) settings. He was also a wonderfully warm and intellectually curious man, as I saw firsthand when I rented a room in his home while at Princeton on a fellowship in the James Madison Program. His life was touched by tragedy, which made his good cheer and generosity all the more remarkable. Paul's wife Barbara Boggs Sigmund (daughter of Hale and Lindy Boggs) was Mayor of Princeton and a Democratic candidate for US Senate from New Jersey, but her political career and life with Paul and their sons were cut tragically short when she died from cancer 24 years ago. Requiescat in pace.
April 01, 2014
Wolterstorff, The Mighty and the Almighty
I want to echo the enthusiasm from Rick and Marc about the excellent roundtable discussion at Notre Dame last Friday about Nick Wolterstorff's recent book, The Mighty and the Almighty. The meeting was a model of interdisciplinary engagement among law professors, theologians, philosophers, and historians. Building on Wolterstorff's earlier book, Justice: Rights and Wrongs (Princeton, 2010), The Mighty and the Almighty defends a rights-protective, limited, non-perfectionist state based on a creative interpretation of Romans 13 and other texts. As one observer noted, Wolterstorff argues that the state in Christian political theology providentially comes to look like a modern liberal democracy, a view at odds both with the rejection of legitimate political authority in authors such as John Howard Yoder and with Calvinist or Thomist perfectionism about the state in most Reformed and Catholic accounts. From my standpoint, there is much to agree and disagree with in the book--the rejection of "perfectionism," for example, might depend on a certain framing of the perfectionist/anti-perfectionist distinction. But thanks to Rick for hosting such an important and worthwhile conversation about an important and worthwhile book by one of the era's great Christian philosophers.
February 26, 2014
Inviting Applications for the Libertas Project Summer Workshops
The Libertas Project at Villanova University School of Law is seeking applications for participation in its 2014 summer workshops on religious and economic freedom. The project will seek to bring together concerns about religious freedom and economic freedom in a framework that situates both topics amid a larger conversation about freedom, law, and virtue. The Libertas Project aspires to broaden the academic and public appreciation for religious freedom as a human good, while also bringing the insights of religion to bear on conversations about economic freedom as an essential component of a free society. A more detailed description of the project’s inspiration and goals is below. The Libertas Project is made possible through the support of a grant from the John Templeton Foundation.
To address these issues of religious and economic freedom, the Libertas Project will host a series of summer workshops at Villanova University School of Law. Each workshop will be comprised of approximately 20 participants drawn primarily from law but also welcoming scholars from related fields (philosophy, political science, religion, business, and economics, for example) as well as judges, policymakers, and journalists. The workshops will be structured around a set of common readings on each topic with group discussions, break-out sessions, and meals in order to foster scholarly networks and collaborative projects among the participants.
The dates for the 2014 summer workshops are July 7-9 on economic freedom and July 14-16 on religious freedom. Participants in the workshops will each receive an honorarium of $1500.
The workshop moderators will be Thomas Smith (Villanova University) and Mary Hirschfeld (Villanova University) on economic freedom, and Marc DeGirolami (St. John’s University) and Zachary Calo (Valparaiso University) on religious freedom.
The workshops will take place at Villanova University School of Law. Villanova is located 12 miles west of Philadelphia, the fifth-largest city in the United States and the second-largest city on the East Coast. The campus is situated on Philadelphia’s suburban Main Line, and Villanova is easily accessible by train, plane, car, or regional public transportation.
Due to limited travel funds, participants are asked to obtain travel funding from their home institutions, but travel scholarships are also available.
To apply, please submit a brief statement of interest (and specifying whether you are interested in the workshop on economic freedom or religious freedom) with a current c.v. to the project leader, Michael Moreland, Vice Dean and Professor of Law at Villanova University School of Law (Moreland@law.villanova.edu) by April 30, 2014.
The Libertas Project addresses two topics related to freedom in the context of law and religion in American public life: religious freedom and economic freedom.
Religious freedom and economic freedom, though rarely treated together, illustrate both some of the shortcomings and the possibilities of American intellectual life, most especially in American law and legal scholarship. One of the challenges faced in American legal scholarship and political theory on religious freedom is the reduction of religious freedom to constitutional law, with little engagement with theological arguments or empirical research on religion in American public life. The leading casebooks and materials on law and religion – even those most sympathetic to religious views – often contain little engagement with theological sources. The American legal discourse on religious freedom is dominated by an understanding shaped by the constitutional framers and then worked out in U.S. Supreme Court doctrine. While important, such a focus omits what is often genuinely important about religious freedom and why it is worthy of constitutional protection in the first place. In addition to understanding the constitutional tradition, lawyers and policymakers also need to understand religious questions as they arise across theological traditions as well as in the history of political thought and practice.
At the same time, public discourse about economic freedom tends to avoid engagement with religion, resulting in an unnecessarily cramped view of the possibilities for mutual illumination between economic and religious aspirations. In some contemporary schools of thought, human beings are understood solely in terms of narrow economic motives. But if religion can be understood as a school for the cultivation of right desire for the benefit of individuals and the common good, putting religious traditions in conversation with economic theory and practice is critical to the effort to raise the most important questions about the meaning and purpose of economic activity: How does the cultivation of an entrepreneurial spirit liberate human capital for human prosperity in a good society? How does such a society manage risk and reward? How are economic motivations better understood when we place them in theological and social contexts? What is the relationship of the entrepreneurial spirit to the meaning of justice and equality? What resources might religious traditions bring to bear on the meaning of economic freedom?
The Libertas Project seeks to bring together legal, theological, and philosophical approaches in search of innovative answers to difficult legal and policy questions about human freedom, both economic and religious. With law students, legal scholars, and legal practitioners as one of the primary audiences, the insights produced by the project will inspire in current and future lawyers and policymakers a renewed commitment to both moral character development and free markets. The combination of economic freedom and religious freedom promises a society of responsible persons working toward the common good. In sum, the Libertas Project seeks to foster a greater understanding of the ways religious and economic freedom can bring about the development of character that advances the prosperity and health of the good society.
February 06, 2014
Reflections on the 10th Anniversary of Mirror of Justice
I first came across Mirror of Justice 10 years ago while practicing at a firm in Washington—I was amazed to see that there existed a critical mass of smart, engaged legal scholars in an area called “Catholic legal theory” and followed the blog avidly. My decision to enter the legal academy was shaped partly by the conversation I saw taking place at Mirror of Justice, and, a few years ago, I eventually became a contributor.
Like Rob Vischer, I now have an administrative role that leaves little time for working on Catholic legal theory, though I think a lot about the nature of legal education at a Catholic university. As Rob indicates, Mirror of Justice appeared at a time when there were new law schools (such as his own at St. Thomas) opening with an intentional focus on mission and new conferences and workshops at several schools exploring the distinctive aspects of the identity of Catholic law schools. That period has now passed and there are now enrollment- and employment-outcome pressures facing all law schools—religiously-affiliated or not—that seem, understandably, to crowd out other priorities. That said, I have two brief thoughts about the ongoing salience of the “MOJ Project.”
First, Mirror of Justice was founded amid an era in which Catholic universities generally (and not only in law schools) were engaged in a renewed conversation about their religious identity. As is now, I think, widely recognized, the governance by members of sponsoring religious orders and a strong desire to move out of cultural and intellectual isolation had led Catholic colleges and universities to be somewhat complacent about their mission in the post-Vatican II era. The end of that period and the beginning of a renewed conversation were inaugurated by John Paul II’s Apostolic Constitution Ex Corde Ecclesiae in 1990 (the discussion of which was sometimes sidetracked by the debate over the relation of bishops to theologians) and publication of George Marsden’s The Soul of the American University in 1996. Marsden demonstrated that religious identity could (and did) disappear from universities over the course of the history of American higher education, and it became apparent to many that Catholic universities were heading down the same path previously traveled by Marsden’s case studies in secularization and the marginalization of religious identity.
The challenge, of course, was and still is how to respond to this historical situation. From that era came the creation of mission officers at many institutions, the development of mission-related courses (such as Catholic social thought and law-type courses) and programs (such as Catholic studies departments) at some schools, and discussion of how institutions should take into account their mission when hiring faculty and staff. All of those developments were important and praiseworthy, and Mirror of Justice was a manifestation of the same spirit.
But there has always lurked the danger of a kind of “extrinsicism” in some of these efforts, and I think the next challenge for Catholic institutions—and even blogs—is to find ways of overcoming it. I borrow the term from Michael Buckley, SJ, and his discussion of these matters in his book The Catholic University as Promise and Project (1999). (I served as Michael Buckley’s research assistant while I was in graduate school at Boston College during the composition of the book.) As Buckley puts it, this view “presents a vision of the Catholic university in which the religious and the academic, however interrelating and intersecting, are fundamentally extrinsic to one another. In no way does either bring the other to its own intrinsic or inherent completion” (11). And so in law schools and in legal scholarship, “religion” is added onto “law,” just as finance majors in most Catholic universities have to take (and resent) classes about “religion.”
The great Catholic university—and Catholic law school—of the future will seek ways in its institutional life to achieve the integration of faith and reason, the sacred and the secular, in new and creative ways. As Buckley wrote in an earlier essay that was later adapted for his book:
The fundamental proposition of the Catholic university is that the religious and the academic are intrinsically related. Any movement toward meaning and truth is inchoatively religious. This obviously does not suggest that quantum mechanics or geography is religion or theology; it does mean that the dynamism inherent in all inquiry and knowledge—if not inhibited—is toward ultimacy, toward a completion in which an issue or its resolution finds place in a universe that makes final sense, i.e., in the self-disclosure of God—the truth of the finite. At the same time, the tendencies of faith are inescapably toward the academic. This obviously does not suggest that all serious religion is scholarship; it does mean that the dynamism inherent in faith—if not inhibited—is toward its own understanding, toward its own self-possession in knowledge. In their full development, the religious intrinsically involves the academic, and the academic intrinsically involves the religious—granted that this development is de facto always imperfectly realized at best or even seriously frustrated. "The Catholic University and the Promise Inherent in Its Identity," in Catholic Universities in Church and Society: A Dialogue on Ex corde Ecclesiae, ed. John P. Langan, SJ (Georgetown University Press, 1993), 82.
Second, I am generally sympathetic to reforms in legal education that emphasize business literacy and experiential learning as a way to prepare our graduates for successful careers, as indicated by Villanova Law School’s strategic plan. I think Catholic law schools and the work of this blog might bring two other important pieces to the discussion of legal education, however.
One is an emphasis on student formation and discernment. As Christian Smith and his colleagues documented in Lost in Transition (2011), many young adults are detached from moral, political, and religious commitments that often leaves them without the resources to make sense of their lives and personal and professional choices. Catholic institutions and the tradition they inherit have a well-developed framework for engaging such questions, and I am excited to see how our institutions will find ways of educating the whole person and engaging our students from within that framework.
Finally, the Catholic law school and “Catholic legal theory,” while committed to preparing students for professional success, also appreciate the full context for law and legal institutions. We are educating souls, not merely imparting skills training for budding bureaucrats. And so at a time when humanistic legal education (and courses in areas such as legal history and jurisprudence) is being very much called into doubt, I hope this blog and our institutions can develop arguments for the importance of such an education--not to the detriment of professional skills and a successful career but because we are the bearers of a great tradition that insists on education as the formation of citizens and participation in God's own work.
September 20, 2013
Pope Francis and Mercy
Aquinas writes that mercy is the greatest of the virtues insofar as it is proper to God and the way in which God's omnipotence is primarily made manifest (ST, II-II.30.iv). Apart from the hurly-burly of reaction to Pope Francis's interview for Jesuit publications, I think this--the primacy of mercy--is the deepest and most powerful aspect of what Francis is saying and calls all of us (as teachers, parents, colleagues, and friends) to ponder where and how we can bring about mercy in a world desperately in need of it. Over at First Things, Nathaniel Peters writes:
Like any good triage specialist, the pope knows that you give the most critical medicine first. That is why, first and foremost, he preaches the mercy of Christ. Mercy, he clarifies, is neither rigor nor laxity. It neither ends in condemnation, nor in a false sense of comfort that one is not diseased. It says what Francis says of himself: “You are a sinner, and the Lord has looked upon you with mercy.”
Since this is the heart of the gospel, all other aspects of Catholic truth presuppose and proceed from it. All the controversial parts of the faith can only be understood in light of this fundamental truth. During and before his papacy, Benedict repeated this again and again. The heart of the gospel must be understood so that the moral teachings can be understood.
September 17, 2013
Robert Bellarmine and the Seeds of Constitutionalism
The great saint, Jesuit cardinal, and doctor of the Church Robert Bellarmine died on this date in 1621. This gives me another opportunity to commend the work of the terrifically talented Stefania Tutino, including her book on Bellarmine's political theory, Empire of Souls: Robert Bellarmine and the Christian Commonwealth (Oxford, 2010), and her edited collection of primary sources from Liberty Fund. Here's a bit from Stefania's conclusion to the chapter on Bellarmine and the "potestas indirecta":
Bellarmine followed the neo-Thomist doctrine of differentiating sharply between the natural power of the sovereign and the supernatural power of the pope, and indeed he grounded his view of the pope's empire of souls precisely on the unique, incommensurable, and supreme character of the pope's spiritual authority over both the Church and the Christian temporal commonwealths. This move, however, did not remove the seed of constitutionalism when it came to secular government, or, better, it weakened the authority of the sovereign with respect to the authority of the pope while at the same time granting to the temporal authority an autonomous space with respect to the authority of the Christian Church....
What this paradox highlights, I argue, is just how relevant Bellarmine's theory was in the political discourse of early modern Europe, precisely because it was engineered to safeguard and preserve the pope's spiritual primacy against both the Protestants and the authority of early modern monarchies. The significance of this issue transcends the question of the constitutionalist elements embedded in Bellarmine's and other neo-Thomists' doctrine: in a sense, in fact, precisely because Bellarmine's potestas indirecta was meant to oppose the supernatural and supernational empire of souls of the pope to the national and "natural" jurisdiction of the king, it became a fundamental springboard to rethink the secular arguments and foundations of constitutionalism and absolutism. 209-10.